[2005] KEHC 2453 (KLR)
The court found that the application to amend the originating summons was justified as the original document was defective, and that the Civil Procedure Rules permit such amendments at any stage with leave of the court. The court determined that no prejudice would be suffered by the respondent if the amendment was...
Source-derived case information.
- Citation
- [2005] KEHC 2453 (KLR)
- Parties
- Plaintiff: Muchemi Thiongo; Defendant: Peter Mbogo Gitahi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 80 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Amend Originating Summons
- Outcome
- Application to amend originating summons allowed.
- Legal Topics
- Amendment of Pleadings, Originating Summons, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchemi Thiongo
Plaintiff
Peter Mbogo Gitahi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Originating Summons
Legal Issues
- 1 Whether the applicant should be granted leave to amend the originating summons to correct a procedural defect.
- 2 Whether the respondent would suffer prejudice if the amendment is allowed.
Ratio Decidendi
The court found that the application to amend the originating summons was justified as the original document was defective, and that the Civil Procedure Rules permit such amendments at any stage with leave of the court. The court determined that no prejudice would be suffered by the respondent if the amendment was allowed. Allowing the amendment would enable the court to address the substantive merits of the case rather than be hindered by procedural technicalities. Accordingly, the court granted the applicant leave to amend the originating summons within 15 days and ordered the applicant to pay the costs of the application to the respondent.
Court Disposition
Application to amend originating summons allowed.
Orders
- Applicant granted leave to amend the originating summons within 15 days from the date of the ruling.
- Applicant to pay costs of the application to the respondent.
Full Case Text
Judgment text and source record
6 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERIHIGH COURT CIVIL CASE NO. 80 OF 2003
MUCHEMI THIONG’O ………………………………………………….. PLAINTIFFVERSUSPETER MBOGO GIATHI ……………………………………………. DEFENDANTR U L I N G
Peter Mbogo Gitahi, the applicant seeks to have his originating summons dated 2nd September 2003 amended as the same is erroneously described as a Chamber Summons. Muchemi Thiongo the Respondent objects to the application. There is no doubt that the application dated 2nd September 2003 as drafted is defective. Indeed the court had occasion to make that observation in its ruling of 26th May 2005. The applicant now seeks to amend the originating summons so as to rectify the defect. Under order VI A rule 3 as read with rule 4, of the Civil Procedure Rules pleadings which includes an originating summons can be amended at any stage with leave of the court. In the circumstances of this case it is apparent that no prejudice will be suffered by the Respondent if the court grants leave to have the originating summons amended. Indeed it will enable the court to deal with the merits of the summons without being bogged down with technicalities.
I do therefore allow this application and order that the applicant shall have leave to amend the originating summons within 15 days from the date hereof. The applicant shall pay costs of the application to the Respondent.
Dated this 10th day of May 2005 H. M. OKWENGU JUDGE